Reputation Management Online

America's "Right to Be Forgotten"

Ben Medeiros

• Verlag: Routledge
• Jahr: 2022
• ISBN:
  9781000583847
• Auflage: 1
• Thema: Social Sciences
• Thema: Media Studies

This book examines the work of the public relations, technology, and legal professionals who provide online "reputation management" services, situating their work within contemporary debates about regulating speech on the internet.

The author argues that legal solutions like the European "Right to Be Forgotten" are not really possible in the United States, but that the private solutions of reputation management help to ameliorate novel concerns about reputation. At the same time, he contends that these practices prompt different free speech and dignitary concerns unique to the digital environment. Drawing upon rhetorical and legal analysis of diverse texts, including reputation management promotional materials, interviews with practitioners, legal cases, and popular online commentary about reputational disputes themselves, the book intervenes in specific debates about the regulation of the internet, as well as broader socio-legal debates about the role of reputation-damaging speech in a democratic society.

This timely and relevant study will have great relevance for all students and scholars of communication studies, public relations, rhetoric, new and digital media, internet law, technology and society, computer-mediated communication, and sociology.

1Balancing Speech and Reputation ProtectionConceptual Foundations

DOI: 10.4324/9781003287384-2

The goal of this chapter is threefold. First, it introduces reputation as a social phenomenon and explains why it has long been a component of human social organization even under quite disparate conditions. Second, it then establishes the role of the state in regulating the information that pertains to citizens’ reputations and offering some sort of redress for undue reputational injury. In the process, we are thus introduced to the conflict that is central to assessing any system (whether via legal institutions or other means) of reputational dispute resolution: balancing the need for a pluralistic and inclusive “marketplace of ideas” in a liberal democratic society and the imperative to protect reputation as a means of facilitating human flourishing. Finally, the chapter considers the conceptual variables that pertain to both legal resolution and systems of “private ordering,” exploring the advantages and disadvantages that scholars in law and political theory have associated with each.

What Is Reputation and Why Is It Important?

Reputation is an ancient phenomenon, and one that social and natural scientists have studied in myriad contexts. Some have even suggested that it represents a kind of hard-wired principle of human social organization: science writer John Whitfield, for instance, describes reputation as “deeply embedded in our biology.”¹ Across the different contexts in which reputation has been studied, a central refrain is that reputation helps to sort the trustworthy from the untrustworthy for purposes of coordination. Humans use these judgments to make decisions about collaboration with others. According to Whitfield, for instance, the instincts to assess and cultivate reputations perhaps come so readily to us because “reputation’s ability to encourage good behavior and deter bad, as well as deciding our success as individuals, is a vital part of a well-functioning society.” A similar principle can be expressed in the nomenclature of economics: “an individual’s reputation provides ‘a basis for inducing others to engage in market or non-market transactions’ with the individual.”² Such functions have only grown in importance with the rise of modern societies in which we must collaborate with strangers and routinely make decisions based on second-hand (i.e. not directly observed) information. Finally, business journalist Chris Komisarjevsky offers a pithier definition: “[a]t its simplest, [reputation] is what others think of us.”³

Reputation thus fundamentally inheres in the judgments that others make based on available information. For this reason, we may seek to influence it through our actions, but it is not “ours” in the most fundamental sense. Philosopher Gloria Origgi thus asserts that

the control we wield over our reputation is limited and precarious…because the multiplicity of real and imaginary social ‘mirrors’ that reflect it back and forth among themselves and then back to us distorts it, rendering it elusive, shape-shifting, and ineffable.⁴

Given this characteristic, the norms and rules that develop around the management of reputational information are thus critical to ensure that judgments are both useful as well as fair.

Much of the resolution in everyday life is informal: it is through reputation mechanisms such as gossip, peer mediation, and broadcast (i.e. one-to-many) publicity that information about individuals is often circulated, vetted for accuracy and credibility, and countered. This is sensible, as the machinery of the state is expensive to engage (thus sometimes making private resolution the only cost-justified solution) and governments traditionally relinquish some private domain into which public rules do not directly penetrate (even if, again, this might only be so because enforcement costs would be prohibitive). Yet informal systems alone may not fully deter or compensate for the malicious or reckless dissemination of reputational information, and informal resolution often leaves little public record, thus potentially making it less valuable as an informational signal to future collaborators.⁵

Balancing Reputation Defense and Freedom of Expression in US Law

A well-ordered society thus requires the state to help settle disputes pertaining to reputationally damaging speech first and foremost because commitments to public order and the rule of law require some formalized alternative to the honor killings and clan warfare that might otherwise erupt over reputational disputes. Beyond mitigating the general disturbance of public order, another function of law is to provide victims with some means of vindication when they are unfairly maligned. The civil law has therefore long sought to separate innocent or productive speech about others from injurious and actionable assertions in order to protect the reputational interests of citizens.

In the United States, as many readers will already be aware, the area of law traditionally associated with regulating speech that threatens reputational harm is the tort of defamation, the crux of which concerns false statements of fact about another person. (Slander is spoken defamation; libel is written defamation.) In practice, most litigation and consequently most debates in modern US defamation law have concerned libel. Defamation is the product of centuries of common law evolution, and for much of its history imposed a strict liability standard, meaning essentially that anyone found to have made defamatory statements was subject to liability regardless of whether it was done purposefully, recklessly, or accidentally.

The common law typically required four criteria to be met in a successful defamation action: (1) a false statement of fact (i.e. one that is neither true nor an opinion which cannot be proven true or false) that (2) refers to or “concerns” the plaintiff, and (3) was published to a third party with (4) the effect of causing harm to the subject of the statement. Along with added considerations of fault (discussed below), each of these elements generally must still be demonstrated to win a defamation judgment today.

In justifying the state’s interest in allowing compensation for defamation as a civil injury, commentators and judges have often invoked some combination of material and dignitary interests. The material interests involve the actual consequences of a so-called “damaged reputation”: the victim might lose their job or have a hard time finding another one, be shunned by their friends, and be subsequently dogged by suspicion in whatever future dealings. This is not, however, the only kind of harm that defamation law has contemplated over time. In fact, a significant amount of the state’s interest in protecting reputation seems to be aimed at ameliorating the psychological effects of being falsely associated with some kind of perfidious behavior or condition.⁶ In practice, therefore, defamation law essentially addresses a combination of demonstrable loss and presumed psychological indignity that itself sometimes rests on interpretive assumptions about how particular statements will tend to resonate with recipients and thus affect the plaintiff.

The common law’s strict liability standard and the attendant system of awarding damages have, however, been gradually softened over the years by the creation of constitutional defenses against defamation claims. In the 1964 NY Times v. Sullivan case, which involved a libel judgment imposed by an Alabama trial court for minor factual mistakes in an editorial advertisement decrying the treatment of civil rights protesters by the Montgomery police, the Court in Sullivan formally applied constitutional protection to libelous statements for the first time. As Justice Brennan reasoned in the majority opinion, too unforgiving a standard for defamation creates chilling effects because some speakers will judge it too costly to risk liability for incidental inaccuracies or caustic statements that fell into ambiguous territory between fact and opinion. Public discourse overall would suffer, as the roster of participants and the vehemence with which they participate would be enervated.⁷ Recovery for defamation would only be allowed for a public official like Police Commissioner Sullivan if they could prove that the false statements were made either deliberately or so recklessly that they flagrantly flouted the conventions of ordinary journalistic due diligence. They called this the “actual malice” standard. It was particularly important to encourage robust discussion about public officials like Sullivan, according to the logic of the standard, and thus the rules had to ensure that speakers would participate freely enough to make the public conversation “uninhibited, robust, and wide-open.”

In a theoretical sense, the Sullivan case and subsequent revisions of the constitutional limitations on defamation law were therefore grounded in what is usually described as the “marketplace” theory of free speech. The seminal articulation of this framework in the larger context of a theory of liberalism comes from philosopher John Stuart Mill’s mid-nineteenth century work On Liberty.⁸ In this framework, the goal of any legal guarantee of freedom of expression is to encourage the greatest volume of speech so that ideas can compete with one another in the search for truth. This includes speech about government and the affairs of the state – what the Supreme Court calls “political speech” – but also discussion of social and even mundane interpersonal issues that help us to coordinate our lives and make judgments about those around us, and commercial information that helps us to make consumer decisions.⁹ The marketplace perspective assumes, following Mill, that the only speech worth curtailing would be directly injurious (and therefore sanctionable under the “harm principle”) or that which is factually false. Otherwise, in a phrase that has become somewhat of a cliche, the marketplace theory contends that the remedy for “bad” speech is more speech.¹⁰

The decision in Sullivan was thus emblematic of the vision for the First Amendment that prioritizes maximizing the range of viewpoints available to the public to invigorate the marketplace of ideas. More specifically, though, the ultimate goal of protecting speech is not simply to defend the liberty of the speaker; following philosopher Alexander Meiklejohn’s “town meeting” analogy for free speech protection, it is to make sure that the public discourse is enriched for listeners. As legal scholar Harry Kalven and others have pointed out, the Sullivan opinion evinced a particular vision in which the purpose of the First Amendment is to encourage the citizen critic of government for the benefit of all observers, not just for the liberty interests of the speaker.¹¹

The Sullivan case also captures how the core tenets of modern libel law were shaped in response to the prevailing media environment of the time, and thus provides a kind of counterpoint to the digital age. It is widely remarked that the civil rights context created the real urgency for the Court to curtail the common law rules because southern officials were using them to effectively shut down national coverage of civil rights struggles in the south.¹² The presumption, then, was that wider public awareness of these issues hinged significantly on the fate of a few publications.

Further, the circumstances surrounding the publication of the statements were more or less transparent. The speakers were in no way mysterious, as the organization responsible for running the ad had signed its name and made its address available to receive donations. There were a handful of editors at the paper to whom police commissioner Sullivan could appeal directly for a retraction (he was refused). While there was some argument over whether the ad would be understood to refer to Sullivan in the first place, it was easy to figure out roughly how many people would have been exposed to the ad based on how many copies of the paper circulated in Alabama (not many, though this hardly mattered in a case of libel per se). Finally, it was easy to see that Sullivan was by basically any definition a public official for all purposes and thus would be subject to the new actual malice rule. He may have sought vindication through a libel lawsuit, but he could just as easily have commanded the public’s attention through publicity endeavors of his own. The relative ease of apprehending these variables thus makes the case a paradigmatic reputational dispute for a public sphere dominated by mass media.

Following Sullivan, the question of exactly which plaintiffs should be subject to the “actual malice” standard took center stage. In Gertz v. Welch (1974), the Court attempted to resolve nearly a decade of oscillation on this question, determining that it applied only to public officials and certain categories of what the Court called public figures (like celebrities or people who are prominent in the discussion of some particular issue), and that any defamation plaintiff had to determine that statements were made at least negligently, i.e. having disregarded ordinary due diligence.¹³ In dicta, however, Justice Powell additionally articulated the underlying spirit of the Court’s approach to libel law: “the first remedy of any victim of defamation is self-help – using available opportunities to contradict the lie or correct the error, and thereby to minimize its adverse impact on reputation.”¹⁴ While the actual legal test does not technically require plaintiffs to show that they tried to pursue self-help first, the availability of self-help (or “access to the means of corrective counterspeech”) is a factor weighed in determining whether a plaintiff is a public or private figure as a matter of law. This principle that self-help is the preferred first resort when someone feels their reputation has been unduly maligned thus introduces an important variable into any consideration of how to balance speech and reputation protection: what means exist by which the victim can try to vindicate him or herself?

American tort law also seeks to balance speech and reputation protection when speech is thought to harm the reputation of a business. Even before the Sullivan case, courts had recognized the closely related tort of commercial disparagement. In a commercial disparagement, the injury being recognized is more squarely financial in natu...

Inhaltsverzeichnis

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• 1 Balancing Speech and Reputation Protection: Conceptual Foundations
• 2 Reputational Precarity in the Digital Age
• 3 Remedies: Legal Reform
• 4 Remedies: Reputation Management Practices
• Conclusion
• Index